• In an unfair dismissal claim, a successful employee can claim for loss of earnings as well. This is called a compensatory award and it is "such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer" (section 123 ERA 1996).
• Section 123 of the ERA 1996 requires the employee to mitigate their loss, i.e. to find another job and the employee will be expected to explain to the tribunal what actions they have taken by way of mitigation.
• The burden of proof is on the employer to show that the employee has acted unreasonably in not taking steps that would have mitigated their loss; it is not enough for the employer to show that there were other reasonable steps that the employee could have taken but did not take.
• Whether the employee has done enough to fulfil the duty to mitigate will depend on the circumstances of the case and should be judged subjectively.
• Ultimately, it will be for the employment tribunal to determine whether it is unreasonable for that particular employee to have refused to look for a new job in the relevant sector given fears over contracting COVID-19, taking into account all of the relevant considerations, which are likely to include:
  • the sector in which the employee works (for example, the healthcare or wider care sectors) and whether this presents an increased risk of contracting COVID-19.
  • whether the employee falls into the category of clinically vulnerable or extremely clinically vulnerable.
  • whether there are any other factors which make the employee higher risk. The World Health Organisation has identified that those aged over 60 are at a higher risk of developing more severe symptoms. There is also evidence that ethnicity has a significant effect on risk of death from COVID-19, and that gender plays a role in risk with men being at a higher risk of death from COVID-19.
  • whether the employee was concerned about infecting someone in a vulnerable category.
  • whether the employee suffered from severe anxiety or another mental health condition.
  • whether there were any roles that could have been done remotely and/or in a COVID-secure work setting. The factors that increase the risk of COVID-19 for the employee are likely to be balanced against evidence of such roles.

If you require advice on this contact Irina Polyakova on 01484 821 300 or at irinapolyakova@eatonsmith.co.uk